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Can The BBC Copy The Great British Bake Off’s Format?

Following the sale of The Great British Bake Off from Love Productions to Channel 4 many GBBO fans have asked me whether or not the BBC can legally produce a copycat show and if Channel 4 have just paid £75 million for a tent.

With the news that first presenters Mel Giedroyc and Sue Perkins and now Mary Berry will not be following the move of channels, we will look at exactly what it is that Channel 4 have bought with their purchase of the GBBO format from Love Productions.

What is a TV Format?

A TV format is the original concept for a TV show. It is the look and feel of the show and the ideas behind its creation.

Typically the format of a TV show is considered a valuable piece of intellectual property, often sold to other networks for vast sums. Usually, it would be expected that TV formats are protected by copyright like how music or artwork would be.

The name of the show “The Great British Bake Off” is a UK registered trademark owned by Love Productions Limited. The rights to use this trademark will have been granted by Love Productions to Channel 4 as part of the new contract to host the show.

Any use of the name by another broadcaster or network will only be permitted by Love Productions under license and any unauthorised use would provide Love Productions Limited with a clear right to sue for breach of intellectual property rights. Also, it is to be expected, that Channel 4 will have secured UK exclusivity to the use of the trademark for the purpose of the show.

Why is it Difficult to Protect a TV Format?

Courts have traditionally taken the view that television formats, are simply ‘ideas’, and it is established in law that copyright cannot protect an idea.

The presenter of the show Opportunity Knocks, Hughie Green, was denied protection under English Copyright Law in 1989 where the court held the view that the format of Opportunity Knocks was merely an ‘idea’ for a game show and as such, was not protected by English Copyright Law.

This case is to this day often cited in UK courts. This shows how hard it is to protect a TV format under English Copyright Law despite the establishment of the Format Recognition and Protection Association (FRAPA), an international organisation dedicated to supporting the protection of formats.

FRAPA believe formats should be protected by copyright.

The case for protection may vary depending on the level of investment and creativity that has been applied to the development of such format.

It would appear fair to suggest the creators and investors of a format, having often invested significant cost and time in its development, should be entitled to intellectual property protection. However, the courts at present, do not agree.

What’s Next For Baking on The BBC?

Despite having the loyalty of Mary Berry the BBC are unlikely to reproduce the GBBO format.

It is likely that the contract entered into between the BBC and the production company contains contractual restrictions which prevent the BBC from competing with the format of the baking show in the event of termination or expiry. Any breach of such restrictions by the BBC would result in significant financial or reputational consequences.

Similarly, it is likely that legal remedies of “passing off” would be available to Channel 4 if BBC attempted to copy or replicate the format of the GBBO.

The BBC could potentially use a similar format; however, this would run the risk of plagiarism and a potential costly legal battle with both the production company and with Channel 4 on the grounds set out above.

Fiona Harte is a business advisory lawyer and specialist media and entertainment lawyer at Slater and Gordon in London.

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